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Did Denver Police Really Shoot Jessie Hernandez Out of Self-Defense?

Cops initially said the 17-year-old was threatening them with a moving car, but the trajectory of the bullets that killed her raise new questions.

Josiah Hesse

Josiah Hesse

Jessica Hernandez. Photo courtesy Ashley Pena

A recent autopsy report on 17-year-old Jessica Hernandez, who was shot to death by Denver cops on January 26 after allegedly driving a vehicle into an officer, has raised serious doubts about the cop's claim to have been acting in self-defense.

An eyewitness inside the car originally said that shots were fired before the vehicle ever moved, and the autopsy report shows that Hernandez was struck by bullets coming from the driver's side. That potentially contradicts statements from Denver Police Chief Robert White, who said the car was headed toward the officers, striking one of them in the leg, before they opened fire.

In a statement, Hernandez family's attorney Qusair Mohamedbhai said, "There is now objective evidence contradicting the Denver Police Department's claims that Jessie was to blame for her own death. These facts undermine the Denver Police Department's claim that Jessie was driving at the officers as they shot her."

Hernandez's body was found to have a blood alcohol level of 0.047, according to the autopsy, and tested positive for cannabis. This, along with the fact that the car was reported stolen, could be used to discredit Hernandez if charges are ever filed against the officers.

The issue is currently being investigated by the Denver District Attorney's office, though Mohamedbhai does not believe it will be reviewed with an objective eye, pointing out that the local DA has not prosecuted an officer in a shooting incident since 1992.

Both the District Attorney's office and a spokesman for the Denver Police Department declined to comment on the ongoing investigation.

"We want [Denver DA Mitch] Morrissey to step aside and have another agency come in," Mohamedbhai tells VICE, adding that the family has requested an independent federal investigation of the incident. "He's not impartial. He's shown a pattern of coming out in favor of police involved in crimes. This is a culmination of failures to discipline officers for shootings; when you don't create strong, understandable policies of when you can and can't shoot, these types of incidents occur."

Lonnie Schaible, an Assistant Professor in the School of Public Affairs Criminal Justice at CU Denver, says it's not uncommon for a DA to shy away from prosecuting police officers who claim self-defense, since it's a pretty universal policy to allow the use of lethal force if the officer feels his or her life is being threatened.

"They tend to shy away from difficult cases, because it's not rewarding to take something to trial that's not going to end up in a conviction," Schaible says. "If there's ambiguous circumstances and not a lot of clear evidence, or even conflicting evidence, it's not enough to get a conviction.... Their perspective is inherently political, since they're elected officials, and I think they feel it's easier to leave it to other mechanisms to deal with the wrongdoing, like civil suits for wrongful deaths, or federal suits for civil rights infractions."

Schaible adds that often police infractions are dealt with internally by individual departments.

"The officer could be found guilty of a policy violation, which could result in unpaid time off, some other sanction, or termination. Though as we've seen with a couple of other cases in Denver, termination is not likely unless there is a repeated pattern on the part of that officer where there found in violation of policy, or received a lot of complaints."

The controversy over Hernandez's death comes in the wake of a number of policy violations and civic complaints about Denver cops. Early this month, the Denver Post reported that one DPD officer named Shawn Miller has received "18 accusations of excessive force in his seven-year career," and was the subject of two lawsuits, one of which will result in a $860,000 payout to a disabled veteran after Miller "beat him so severely he had to be resuscitated." A few weeks earlier, local alt-weekly Westword ran a feature story reporting that DPD officers had fired on moving vehicles four times in the last seven months—and that three of those incidents involved the same officer. (He was not present at the scene of Hernandez's death.)

Mohamedbhai says that the city has spent millions of dollars on court rulings that find police guilty of bad behavior, yet somehow the Denver DA hasn't seen fit to prosecute a single officer in 23 years.

But Schaible clarifies that there is a notable difference between the two mechanisms at play here.

"It's much more difficult to get a criminal conviction than it is a civil conviction," he says. "When the prosecutor pursues criminal charges, one person can hang up the success of the prosecution, whereas in a civil case, you can get assignment of responsibility, so the jury can be more flexible, ruling that the officer didn't have ill intent, but they took a bad action, so the department and the officer may be financially responsible. So that's why you see a lot more civil judgements against a department, even though there aren't a lot criminal prosecutions, because the burden of proof is fundamentally different."

Mohamedbhai has experience with lawsuits involving police brutality: He's represented four women who were maced and subject to violence by DPD officers in a restaurant parking lot, and later a man who was severely tortured by jail inmates with the tacit cooperation of guards in the Denver Sheriff Department. "In that case the Denver Police were also involved," he says. "A federal judge found that Denver police had actively gone out and intimidated witnesses. The judge called for a pattern and practice investigation of the police and Sheriff's Department, and asked the US Attorney to investigate the Denver Police for their acts of intimidation."

The coroner who performed Hernandez's autopsy ruled her death a homicide, which is not a proclamation of guilt upon those who shot her, just a medical term that indicates she died at the hand of another person. (The death of Eric Garner, the Staten Island man placed in a police chokehold this summer, was also deemed a homicide, but a local grand jury declined to press charges against NYPD Officer Daniel Pantaleo.) Still, Denver DA Mitch Morrissey has been critical of coroners' use of the term in the past. In 2012, after DPD officers Tasered a man at the Denver Zoo who had been violent with the staff, the coroner determined that his cardiorespiratory arrest was the result of police action, and his death was ruled a homicide. There were no charges brought against the officer, and the Denver DA didn't feel the word "homicide" was justified.

"To use that, that's a flash term, that makes people angry," Morrissey told CBS Denver. "'Undetermined' should be the classification he uses here."

In the case of Hernandez, the people were angry long before the coroner ruled her death a homicide. In the weeks since the shooting that ended her life, numerous protests in her name have rallied the Latino, Occupy, and LGBTQ communities around Denver, along with other friends and family of Hernandez, many of whom have been dubious about the officer's self-defense claims from the beginning.

"We want to get her justice," Ashley Pena, a Denver resident who says Hernandez was "one of my best friends," tells VICE. Pena has helped organize marches in her name through a shared Facebook page, as well as crafting ribbons featuring a picture of Hernandez, the sales of which are donated to the victim's family. "She was only 17 years old. She had goals—she wanted to be in the Marine Corps, and that was taken from her. She was so outgoing; if someone was sad she'd bring them up. She had this smile..."

Pena's mother, Stacie Chavez, says that under different circumstances her daughter could have been in the car with Hernandez when the shots were fired. "It could've been anyone's daughter," Chavez tells VICE. Over the last month, Chavez has attended protests in the name of Hernandez and others with her two daughters.

On the evening of February 14, Chavez was driving away from one such march when her car was pulled over by the Denver Police, who she says told her she was driving the wrong way down a one-way street. "I would never do that," Chavez says, disputing the accusation. She had an outstanding traffic warrant, and was brought down to the station. But instead of being processed for the violation, Chavez says she was asked about her participation in the march. "Are you one of the people who spilled the paint on the police memorial?" an officer supposedly asked Chavez.

Earlier in the day, two protesters had dumped red paint down a memorial for Denver Police officers killed in the line of duty. The image of a blood-like substance dripping over the words "fallen officers" became a local media sensation, and was taken by the police department as an act of severe disrespect.

Chavez denies being involved in defacing the monument, but having "We Love You Jessie" written on her car window made clear she stood with the protesters. In the end, Chavez says that she wasn't issued a ticket for driving the wrong direction down a one-way, and was let go.

"If I did something wrong, why didn't I get a ticket?" She says. She believes cops only wanted to harass and interrogate her about the marches.

Denver's Independent Monitor has been engaged in an investigation of DPD's policy of shooting at moving vehicles since before Hernandez's death. Suffice it to say the findings of that investigation have explosive potential.

Follow Josiah M. Hesse on Twitter.